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(This article was originally
published by Siskind Susser and can be found at
http://www.visalaw.com/hal.html.)
Do you need a lawyer?
The old saying “He who represents himself has a fool for a
lawyer” applies to immigration law like many other types of legal
matters. Immigration law, particularly American immigration law is
one of the most politically divisive areas of the legal system and
it is therefore not surprising that it has grown incredibly dense
and is constantly changing. No fewer than three major agencies
administer the US immigration system and dozens of other agencies
play a role. Many people turn to agencies like the US Citizenship
and Immigration Service and the US Department of State to determine
how to immigrate to the US.
While web sites and concerted efforts by these agencies to
provide better information to the public are starting to bear fruit,
it could be a grave mistake to rely on government agencies for legal
advice relating to immigrating the US. Why? Consider the following:
* They have no responsibility or liability for information they
provide.
* They are enforcement agencies and the mindset at the
agencies is often to keep out as many people as possible.
*
Information officers are frequently not adequately trained in
immigration law and do not keep up with the latest developments.
*
Individual case situations differ dramatically and agencies do not
have the resources to properly assess your case and advise on how to
proceed.
Even if you can manage to succeed filing the application
yourself, your lack of experience could lead to mistakes that can be
costly in terms of time and money. If you have to hire a lawyer
later, your mistakes may limit your options and immigration lawyers
are likely to charge more to clean up the mess.
A good immigration lawyer should be able to give you an honest
and thorough assessment of your case and be able to explain the
options that are available to you based on not only the current law,
but changes that are in the legislative and judicial pipeline at any
given time. The lawyer can then work with you to prepare your case
and represent you in front of the administrative agency handling
your petition. The lawyer should be able to explain to the
government agency why your case meets the requirements of the law
and if problems arise, the lawyer often has additional resources
available to help resolve the issue or can prepare your case for an
appeal.
What about people that call themselves “immigration consultants”?
In most states, people who work as immigration consultants are
violating the law by practicing law without a license. Because these
individuals are operating illegally, their work is not regulated and
you do not have the same recourse available to go after someone who
is dishonest or incompetent.
The USCIS does not recognize immigration consultants and will not
allow them to intervene on your behalf should a problem arise in
your case.
Many immigration consultants insist that they are merely
assisting people in completing forms. But even the USCIS has warned
the public that the process of applying for a visa or citizenship is
more than just form-filling. There are regulations behind most of
the questions asked on USCIS forms and questions that may seem
straightforward are actually designed to elicit information relating
to a complicated matter of law.
What to look for in your lawyer
There are a number of factors to consider when hiring an
immigration lawyer and with more than 7,500 immigration lawyers
practicing in the US, the process of selecting just the right lawyer
can be difficult.
The following list of factors may prove helpful in making your
decision:
1. AILA member – Is the lawyer a member
of the American Immigration Lawyers Association? AILA is probably
the immigration lawyer’s best resource for up-to-date information.
While being an AILA member is not a sure sign of qualify, it may
indicate that the lawyer is keeping up with this rapidly changing
field of law.
2. Fees – How does the attorney set his
fees? Most immigration lawyers work on a flat fee basis, though in
many matters, hourly billing or contingency billing may be done. If
an attorney prices way outside of the market – either on the high of
the low side – this should be a source of concern. The lawyer may
not have any idea how much work is really involved in the case. Or
the lawyer may simply be attempting to gouge. A lawyer who quotes a
price too low may also be able to price that way because the work is
being pushed down to the level of a legal assistant or very junior
associate. There are great lawyers who charge more and lawyers who
operate extremely efficiently who can charge less. But comparison
shopping will serve you well.
3. Disciplinary actions – Has the
attorney ever been disciplined by the Board of Professional
Responsibility of the state bar? This is an obvious sign of
problems. There are also people who falsely claim to be licensed
attorneys. The local bar is also the place to check that the
attorney is licensed and in good standing.
4. Community reputation – Has the lawyer
established a good name for himself or herself in the community? If
your attorney has a sterling community reputation, chances are it
was earned through hard work.
5. Client references – A strong
reference from a friend or colleague is often the best indicator of
whether a lawyer is up to snuff.
6. Focus of practice – Within
immigration lawyer, there are a variety of subspecialties:
employment, family, asylum, deportation, etc. Consider going with a
lawyer with a strong background in your particular type of case.
7. Immigration exclusive practice – Many
lawyers list immigration law as one of a variety of types of matters
they handle. It is tough enough for a full-time immigration lawyer
to keep abreast of all of the developments in the practice area. It
is nearly impossible to be a top notch immigration lawyer while
trying to balance being an expert in many other practice areas as
well. While someone can be a good immigration lawyer and also be
very competent in another practice area, watch out for lawyers where
immigration is one practice area on a laundry list of claimed
specialties.
8. Years in practice – Much of
immigration law is unwritten and the longer one is in practice, the
better one’s instincts become. But the opposite can be true as well.
Lawyers who have been practicing for years may become lazy about
staying up to date on the latest changes. Some of the worst lawyers
practicing immigration law in this country are the ones who have
been around the longest. So try and strike a balance.
9. Lawyer-Paralegal ratio – One of the
ways immigration practices are attempting to keep costs down is to
hire paralegals and legal assistants to do much of the work that
immigration lawyers used to do on their own. In some markets, this
may be the only way to keep costs low enough for people to afford to
hire a lawyer. But you should know what you are paying for. Some of
the most expensive immigration firms still staff with extremely high
ratios of paralegals – sometimes as high as ten paralegals per
attorney. A more modest ratio of one to two paralegals per attorney
may mean that the firm is not too overloaded with work and it may
mean that the attorney you thought you were hiring actually knows
what is happening on your case and has the time to speak with you
about your case.
10. Caseload – Is your lawyer taking on so
much work that there is no way cases can properly be handled? Too
many lawyers don’t know when to draw the line and either say no to
taking on additional work or to make the decision to take on more
attorneys and staff.
11. Use of technology – Technology has
revolutionized the practice of immigration law probably as much as
any other area in the legal profession. Does your attorney use
email? Does the attorney have the latest research and case
management software? Does the attorney provide electronic
newsletters and email alerts to inform clients of breaking news.
Does the firm have an extranet that allows you to log in to a
private and secure web site to see what is happening on your case?
Does the firm file applications electronically? Lawyers who master
technology deliver legal services with better quality and can often
leverage technology to deliver legal services less expensively.
12. Communication – The number one complaint
against lawyers in this country is not poor work quality. It is
failing to communicate with their clients. You are paying a lot of
money to hire a lawyer and it is your right to expect to be kept
informed of developments and have your calls and emails returned in
a timely manner. On the other hand, there is still such a thing as
excess and calling your lawyer everyday to find out what is
happening on your case is not necessarily fair either.
13. Board certified – A few states certify
lawyers in the practice of immigration law. If your lawyer practices
in a state that does, make sure he or she has this credential. It is
no guarantee of quality, but it can certainly be an indicator.
14. Educational background – While many fine
lawyers have come out of mediocre law schools and lousy lawyers come
out of the Ivy Leagues, where a lawyer went to school can still be
an indicator of a person’s ability to achieve.
15. Publications – Lawyers who write
frequently about their practice area tend to keep themselves better
informed about their area of law. The ability to get published also
may indicate that the lawyer’s expertise is respected.
16. Promotional materials – Pay attention to a
law firms marketing and promotional materials. Are they professional
and polished or do they make the firm appear to be “fly-by-night.”
How the firm presents itself to its clients and potential clients
may be an indicator of how the firm will present itself – and,
consequently, you – to the USCIS.
17. Conflicts of interest – Immigration
lawyers often have an inherent conflict of interest, particularly in
business immigration matters where they are assisting an employer
and employee at the same time. Most of the time this is not a
problem. But be careful to pay attention to this fact if the
interests should diverge such as when an employer and employee start
to have problems getting along.
18. Industry focus – A number of immigration
lawyers focus on particular types of employers and have become
particularly adept at handling visa matters in their industries. For
example, a small number of immigration lawyers in the US represent
the bulk of physicians applying for visas because of the peculiar
difficulties present in these types of cases.
19. Personality compatibility – Your
experience with your immigration lawyer is more than just the result
of the lawyer’s experience and competency. A lawyer’s “bedside
manner” can mean a lot at the end of the day to how the overall
experience goes. Find a lawyer who really seems to care about your
case.
20. Promising too much – There are actually
immigration lawyers out there who swear they have never lost a case
even after a lengthy career. Be nervous about lawyers who promise
success. A lawyer who honestly presents the risks is worth a lot
more. Likewise, be very weary of attorneys who claim to have special
influence with the government. Also beware of lawyers who speak too
negatively of the competition. If the lawyer is worthy, they can
stand on their own record rather than tearing down the record of
competitors.
21. Engagement letters – Read the fine print
in your engagement letters. Some lawyers load agreements down with
so much “legalese” and one-sided provisions that it should give you
pause. Consider using a lawyer who provides an agreement that is
written in plain English that appears to be even-handed.
22. Local v. national – Unlike most fields of
law, the location of your immigration lawyer is not nearly as
important as you might think. Immigration law is strictly federal in
nature. That means it is basically the same across the country and a
lawyer in one state is practicing under the same system as in every
other state. Immigration law is almost entirely administrative as
well. That means that most petitions are submitted by mail and
personal appearances by an immigration lawyer are becoming less and
less common.
23. Language skills – Some clients who are not
native English speakers may feel more comfortable working with a
lawyer fluent in their language.
24. Ethics – Run as fast as you can from
lawyers that tell you it is okay to lie or otherwise act dishonestly
in your case. Aside from the obvious questions of morality, you are
risking jail time and potential lifetime banishment from the United
States.
What do I do if I just cannot afford a quality immigration
lawyer?
Many people will just never realistically be able to hire an
immigration lawyer due to costs. There are sometimes still options
that will allow you to utilize the services of an immigration
lawyer. Many lawyers work with pro bono legal organizations in their
communities and accept a limited number of no or reduced fee cases.
Keep in mind that you will typically nee to be screened by one of
these community organizations to determine that your case is the
type of case that is appropriate for a referral to a pro bono
lawyer. You will usually be screened as well to determine whether
you truly are unable to pay.
More and more lawyers are also offering to “unbundle” their legal
services and are offering “a la carte” legal work. This means that
instead of handling a case from beginning to end, a lawyer will
prepare only parts of the case or simply provide the client with the
lawyer’s expertise. So perhaps you want to submit your green card
application yourself, but would like to consult with an attorney and
have an attorney review your application. A lawyer who unbundles
their services might work with you to provide just the amount of
expertise you absolutely need and can afford. The practice is still
controversial in some segments of the legal community, but
organizations like the American Bar Association are openly embracing
the concept.
What to do if your lawyer mismanages your case
Unfortunately, the question of what to do when you have hired a
bad lawyer is more than just theoretical for many. The answer
largely depends on the facts of your case. First, determine whether
the problem is really the lawyer’s fault. In many cases, people
complain that their lawyers are ineffective when, in fact, the
problems are beyond the lawyer’s control. This is especially true
with USCIS backlogs.
If your lawyer really has messed up but you think the mistake is
honest and does not reflect deeper problems relating to competency,
it may be easier to work with the lawyer in resolving the matter
than in just switching to a new law firm. If you question the
competency of your lawyer, you may want to get a second opinion from
another attorney. Beware, however, that many immigration lawyers do
not accept cases from people firing previous attorneys. Why? Many
people simply have a negative mindset and will never be satisfied
with their lawyers. While many people have legitimate reasons to
change lawyers, you really want to avoid garnering a “damaged goods”
image and make sure you choose carefully the first time.
If your lawyer grossly mismanages your case, you have two
remedies. You can file a complaint with the board of professional
responsibility for the bar that licenses your attorney. And you also
have the option of suing the attorney for legal malpractice.
At the end of the day, making yourself an educated consumer of
legal services will improve your chance for your case to managed
successfully. That means learning as much as you can about
immigration law so that you can work with your lawyer to achieve the
best solution possible for your case. It also will help you make
sure that you are hiring a lawyer that really knows their stuff.
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